Holding Government Legally Liable for Failing to Act

June 25, 2014

Like a driver obligated to use his brakes to prevent hitting a pedestrian in a road, governments have a duty to protect private property with the right laws and regulations, according to a Vanderbilt Law School professor.

If a governmental body fails to do that – says Christopher Serkin – then property owners should be able to obtain relief under the Constitution.

“In some contexts, government inaction is the most costly choice for all of society,” Serkin says. “Where that is true, forcing the government to pay for its regulatory acts but not its omissions will have the perverse consequence of deterring the government from doing anything at all, even if a regulatory response could dramatically increase overall societal well-being.”

Serkin admits that his viewpoint, set out in an upcoming paper to be published by the Michigan Law Review, “should be quite startling.” Typically, the Constitution is thought to create negative rights – those that constrain the government from acting in certain proscribed ways. It’s a huge step to say that governments can be legally liable for failing to act, he acknowledges.

Serkin argues the point through the example of rising sea levels affecting property owners, but believes the concept could apply in settings as far-reaching as copyright law and financial regulation.

“Some governments are failing to take aggressive steps to address the risks of sea level rise at least partly because they worry that regulatory responses might trigger lawsuits based on what was taken from property owners,” Serkin says. “Establishing new set-backs from the ocean, prohibitions on sea walls and the like, can make governments vulnerable to lawsuits and discourage some from adopting these and other available measures.”

Immunizing the government from the consequences of inaction encourages it to do nothing, Serkin said. But making the government liable for what it fails to do would push it to address the issue of rising sea levels, since property owners would have the option of holding government responsible if rising sea levels harm their property.

“Sea level rise provides a compelling example, but now that the category of passive takings has been identified, enterprising scholars and attorneys will no doubt find other places to push the doctrine,” Serkin says.

“Property rights – long seen as a bulwark against redistribution and state action – may ultimately provide the strongest doctrinal and normative support for compelling government action.”

Source: Vanderbilt University

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